B.S. Chauhan, J. - (1.) Leave granted.
(2.) This appeal has been preferred by the State of Madhya Pradesh and instrumentality of the State against the judgment and order dated 11.11.2009 in Writ Petition (C) No. 6056 of 2009 of the High Court of Madhya Pradesh at Jabalpur, whereby the High Court has restrained the State of Madhya Pradesh or any other statutory authority of further acquisition of land or for any excavation or any construction of the canal network for the command areas of the Indira Sagar and Omkareshwar projects till the Command Area Development plans (hereinafter called CAD Plans) submitted to the Government of India, Ministry of Environment and Forest (hereinafter called MoEF) are scrutinized by the committee of experts and clearance is granted by the said Ministry. The Appellant-State Government has further been directed to provide rehabilitation and resettlement benefits under the Rehabilitation and Resettlement Policy (hereinafter called R &R Policy) for Narmada Valley Projects to the canal affected persons/families of Indira Sagar and Omkareshwar projects and the Narmada Control Authority (hereinafter called NCA) has been directed to ensure implementation of the aforesaid directions.
(3.) The facts and circumstances giving rise to this appeal are: A. That after completing the procedure prescribed for establishment of dams and irrigation projects, the project reports for Indira Sagar and Omkareshwar projects were prepared and submitted for clearance. The environmental clearance for Indira Sagar project was granted by MoEF on 24.6.1987 by an administrative order. The Planning Commission also approved investment to be made in Indira Sagar project on 6.9.1989. B. The R & R Policy of 1989 was introduced by the State of Madhya Pradesh for the ousters of submerged area in Narmada Valley projects. Land acquisition proceedings were initiated in year 1991 for canal construction under Indira Sagar project. A comprehensive CAD plans for Omkareshwar project were sent to MoEF for clearance. Environment Impact Assessment and Environment Management Plan reports were also submitted for Omkareshwar project to MoEF which also contained the R & R plan for the affected persons of the Omkareshwar project. It provided that the persons whose land was to be acquired for establishment of canals were not to be included in R & R plans. C. The Ministry of Welfare, Government of India accorded clearance to the R & R plan of Omkareshwar project on 8.10.1993. Similarly, by an administrative order environmental clearance for Omkareshwar project was granted by MoEF on 13.10.1993. D. The MoEF issued statutory notification under Section 3(2) of Environment (Protection) Act, 1986 (hereinafter called the Act 1986) read with Rule 5(3) of the Environment (Protection) Rules 1986 requiring environmental clearance for development of project on 27.1.1994. The canal construction in Indira Sagar project started on 30.5.1999. The NVDD vide order dated 14.8.2000 amended the definition of "Displaced person" adding in Clause 1(a) the following words: ...or is required for the project-related canal construction and construction of the Government Project Colony. The Planning Commission granted approval in respect of Omkareshwar project on 15.5.2001. The R & R policy stood materially changed vide amendment dated 1.9.2003 as from the definition of "displaced person" the words "which is required for project related construction of canals or the Government project colony" stood deleted. The Amendment to the Rehabilitation Policy was made by the Narmada Control Board (NCB) on the recommendation of the NVDA on 2.7.2003 as per Business Rules of Narmada Control Board Part II Special Procedure for Emergency Sanction and not under the Government of Madhya Pradeh Business Rules. E. The dam construction of Indira Sagar project stood completed in year 2005 and the High Court, in a pending litigation, permitted the State of Madhya Pradesh to raise water level of Indira Sagar Dam up to 260 meter against the full reservoir level of 262.13 meters vide order dated 8.9.2006. The High Court further clarified that NCA had no role to play regarding the Indira Sagar project i.e. intra-State project as its role was confined to inter-State Project, i.e. Sardar Sarovar Project. F. The Omkareshwar dam stood completed in year 2007. In order to set up canals, land acquisition proceedings were initiated in year 2009 and in some cases after conclusion of the proceedings, compensation under the provisions of Land Acquisition Act, 1894 (hereinafter called the Act 1894) has been paid. However, in some cases acquisition proceedings are still in progress. G. The Respondents preferred Writ Petition (C) No. 6056 of 2009 before the High Court of Madhya Pradesh at Jabalpur on 18.6.2009 challenging the acquisition of land for excavation of canals; execution, excavation and construction of canal on various grounds, inter-alia; the CAD Plans had not been submitted by the State and not approved by the MoEF; there had been no compliance of Panchayats (Extension of Scheduled Areas) Act, 1996 (hereinafter called PESA Act) which required consultation with office bearers of Panchayats before initiation of land acquisition proceedings; the canal affected persons were also entitled for the full benefit of R & R Policy including the allotment of land in lieu of the land acquired as per R & R policy, which had not been provided for. H. The State of M.P., Appellant herein contested the case contending that land acquisition proceedings could not be challenged at a belated stage i.e. after dispossession of the tenure holders; authorities had submitted the CAD Plans and acted on the same after being approved by the MoEF. Canal affected person could not be treated at par with an ouster of the submerged area of the dam, rather he would be given benefit as per the policy prescribed for such a class of persons. ;